a and others v secretary of state 2004

On this issue, Lord Nicholls agreeing with Lord Bingham’s reasoning, turns to the case of john Felton who, in 1628 assassinated the Duke of Buckingham. He refused to provide the names of his accomplices and the matter came before the judges who had assembled at serjeant Inn, in fleet street. He stated that the judges agreed unanimously that Felton “ought not by law to be tortured by the rack, for no such punishment is know or allowed by our law

Furthermore more lord Bingham stated that the appellant  by way of partial analogy, on the familiar principle that evidence may not be given by a prosecutor in English criminal proceedings of a confession made by a defendant. In using the “golden rule” in interpreting section 76 of the Police and Criminal Evidence Act 1984 and citing case of Ibrahim v the King, his lordship concluded that “an inexact analogy to with evidence obtained by torture. It applies only to confession by defendants, and it provides for exclusion on grounds very much wider than torture”. Although the case in hand is one which is mostly concerned with statutory materials, their lordships in delivering their judgment, comments and applications of case law was suited to their needs. In relation to the admissibility of evidence obtain by torture(and involuntary confession). Lord Bingham in maintaining that the common law insists on an exclusionary rule with refers to case of R v Warickshall justifies that “involuntary statements are inherently unreliable. Expanding on Lord Bingham, Lord Hoffman citing R v Horseferry road magistrates court exp Bennett, in rejecting the home secretary’s case argument maintained that Kumara is no longer applicable as in Horseferry the court made it clear that they “will not shut their eyes to the way the accused was brought before the court or evidence of his guilt was obtained. Those methods may be such that it would compromise the integrity of the judicial process, dishonour the administration of justice, if the proceedings were to be entertained or the evidence admitted”. Lord Hope use the case of Robert Baillie of Jerviswood who stood trail accused of plotting a rebellion against Charles11. His lordship reasoned that English authority choose to send the accused to Scotland where in the 1680’s torture was permissible. Baillie stood trail before a jury in the High court of judiciary in Scotland and following a reading of his statement, which he gave after being tortured, he was convicted and sentenced to death the following day. Hope concluded that there is a warning of “extraordinary rendition”.

On the appellant  argument that to allow third party torture evidence to be admissible would” so a breach of international law, human rights and the rule of law that any country degrades itself and administration of justice by admitting it ”. Most of their lordships went on to agreed with the issue that to admit third party torture evidence would “bring British justice into disrepute”  and held that the concerns surrounding the use of torture do not fall away when the offending acts are at the hands of another state such that. Lord Bingham concluded that the international prohibition on the use of torture enjoys the status of a jus cogens or peremptory norm of general international law” “the state attaching to such evidence will defile an English court whatever the nationality of the torture. Lord Bingham agreeing with the appellant’s argument that the Ecthr is not to be interpreted in a vacuum. Article 31(3)(c) of the Vienna convention on the law of Treaties provides that in interpreting a treaty, there shall be taken into account any relevant rules of international law applicable between the parties. Furthermore his lordship disagree with the home secretary argument that, in terms of the obligations under the ECHR, the European court of Human Rights(ECtHR) had held that what is admissible as evidence before national courts is a matter for national authorities..

Further more Article15 of the Un convention against torture sets out an exclusionary rule for evidence obtained by torture: “Each state party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made”. Lord Bingham held that “to impose a blanket exclusionary rule that applies to all proceedings”. He pointed to jurisprudence from different states that incorporated the rule. The rationale behind this rule is based on the fact that statement made under torture are often unreliable statements, and torture is often aimed as ensuring evidence in judicial proceedings, so render inadmissible evidence removes an important reason for using torture. It would also damage the integrity of judicial proceedings if such statements were admissible.

A fundamental and established aspect of the English constitution is “the doctrine of parliamentary sovereignty which makes judges subservient to the will of parliament”. Only parliament has the power to make and remove laws and the role of the judiciary is as Dicey strongly promoted in his works in the late nineteenth century, to apply and interpret the will of the legislature. The majority of the judges disagree with the home secretary of states case that the SIAC under rules r.44(3). That there might have been a mismatch in parliaments drafting because of human nature.  Their lord-ship decided that although a mismatch did exist, it was up to parliament to amended that. As the executive, judiciary and legislative perform an entirely different function. The judiciary are bound by statues yet their power of interpretation allow them a certain element of discretion. This can be controversial and lord Brown reinforce the judiciary role as an interpreter, not legislator.The fact that there was a national security doesn’t automatically acknowledge the use of torture. “torture cannot be undone and the greater public good lies in making some use at least of information obtained whether to advert public danger or bringing the guilty to justice” .

The house of Lords were unanimous in its condemnation of torture and its fruits. However, the house then divided when the question of how to approach the burden of proof in establishing whether or not a statement was obtained by torture. Lord Bingham took the view that a conventional approach of the burden of proof is not appropriate “where the appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed(without responsibility)to represent his interests, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware.” He also reject placing the burden of proof solely on the secretary of state, as in his view it would render section 25 appeals all but unmanageable if a generalised and unsubstantiated allegation of torture were to impose a duty on the secretary of state to prove the absence of torture. His lordship therefore sought to devise a procedure that would afford protection to the appellant without imposing a burden of proof on either party that they would not be able to discharge. There seems to be a division in the house as to which test of the burden of proof to apply. The house spilt 4 to 3 on which test should be follow.

The majority (lords Carswell, Brown and Roger) agree with hope, submitting that the SIAC should only reject evidence if it concludes that the evidence was obtain via torture. The test for the SIAC according to Hope was based on Article 15 of the UN Convention against torture. His argument differentiate between statements and information obtained through torture, and refer to the case of Kuruma v the queen to point out that evidence however it was obtained was admissible in English court.

The minority(lord Hoffman, Nicholls and Bingham). Lord Hoffman raised the responsibility by arguing that the secretary of state may adopt the view of “plausible deniability”. That is, the secretary of state may simply choose not to enquire as to how the information was gathered. His lordship argues that this may be sufficient and acceptable for the executive “but a court of law would not regard this as sufficient to rebut real suspicion and in my opinion the SIAC should not do so.”

This judgment underlines the universal abhorrence towards torture. Their lordship expressed a unanimous view when they allow the appeal. They  placed a test based on Article 15 of the UN convection against torture, in which SIAC may only exclude evidence if it is established that it had gathered through the application of torture. The consequence of the ruling are, such that the SIAC can no longer rely on third party evidence. However contrary to this decision, part 4 of the ATCSA has been repealed. A vicious situation currently exist whereby SIAC is to reconsider the validity of the certifications which are no longer operational or in existence. Academics such as Sangeeta Shah in her review “the UK’s anti-terror legislation and the House of Lord; the battle continues” present that “the judges seem acutely aware of the pressures on the government to protect public safety. In the aftermath of the terrorist attacks in London in July 2005, which were still very fresh in their Lordship’s minds when hearing the case in October of the same year, the majority of the panel seemed to appreciate that their judgment had a wider audience of the public at large and they did not want to suffer criticisms that there was unnecessary judicial interference with the executive’s efforts to protect the public”.  Home secretary Charles Clarke, writing in the Guardian newspaper, at that time welcome this decision, declaring that it reflects the government’s own policy, and stated that the law lords declared it perfectly lawful for the executive to rely on evidence obtained from torture, both operationally and in making policy decisions. 

However I cannot see how this decision would deter the government as recent case against the home secretary of states v JJ and others(October 3, 2007) 28hrs curfew and close restricted social contacts, was held to amount to deprivation of liberty, contract to article 5 of the ECHR, and were according unlawful. it can be seen that the home secretary will go to every length in order to protect the safety of its citizens. And such direction is followed in the USA as there have been evidence of the use of “water boarding” of al-Qaida detainee Abu Zubayda. Furthermore the former prime mister Tony Blair – warned that “international terrorism will remain a threat to British security for many years.... he insisted that a large-scale surveillance of terror suspect was essential”. He also agree with the use of torture in order to protect citizens’. Tony Blair’s account of the terrorist threat was echo again in a report by Mark White which states that: “ the server terror threat in the Uk is unlikely to reduced in the future. Counter terrorism minister Tony Mcnulty said all intelligence pointed to sever and sustained threat. Officers are patrolling the central London on the lookout for suspious  vehicles under section44 of terrorism act”. However many Muslim community believe that this section is unfairly targeting them. Met police officer Bob Broadhurst relied “ these stop are inconvenient.... they can be embarrassing... none of us like being stopped... but want is the alternatives? We do nothing, and we become at great risk”. I too will agree with this position, if there is a valuable information which may potential save the life’s of millions of people and the only way to obtain that information is through torture or harsh law, then I think its is perfectly ok to do so.

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